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MEE Subjects (AV) > Family Law > Flashcards

Family Law Flashcards

1
Q

Ceremonial (Statutory) Marriage

A

(1) Parties must obtain and license and (2) Participate in a ceremony (Solemnization) =

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2
Q

Ceremonial Marriage License Requirements

A
  • Need capacity to marry—minimum age restrictions; parental consent for young
  • Waiting period between date of marriage and date of ceremony
  • Medical testing—state can mandate testing, but cannot condition a license on the results
  • Expiration date—most states impose an expiration date on a marriage license
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3
Q

When is a Marriage License Not Issued

A
  1. One party is married to someone else
  2. The parties are too closely related
  3. The marriage is a “sham”
  4. The parties are incapable of understanding the nature of the act
  5. One or both parties is under the influence of drugs or alcohol
  6. A party lacks consent due to duress or fraud
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4
Q

Solemnization

A

Solemnization = Ceremony

  1. Must be performed in front of two or more witnesses
  2. A judge, political official, or member of the clergy must solemnize the marriage
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5
Q

Common Law Marriage Requirements

A

(1) the parties agree they are married,
(2) cohabit as married, and
(3) hold themselves out to the public as married

Legal/Mental capacity—of age, not too closely related, understands nature of the act

Intent—must be evidenced by words in the present tense (e.g., “we are married”)

* Only recognized in 9 states

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6
Q

Why would a marriage valid on one state not be valid in another state?

A

Under conflict of law principles, a marriage that is valid under the law of the place it which it was contracted is valid elsewhere unless it violates a strong public policy.

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7
Q

Heartbalm Action

A

A civil suit for money damages based on the damage to a jilted party’s reputation

abolished in most states

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8
Q

2 Ways to End a Marriage

A

(1) Annulment—voids a marriage and declares it as having never been valid
(2) Divorce (Fault and No-Fault)

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9
Q

Void vs Voidable Marriage

Grounds for Each

A

Void Marriage—treated as if it never happened; does not need to be judicially dissolved; not legally recognized for any person

  1. Prior Exisiting Marriage (later marriage is void; some states allow the marriage to become valid if one party had a good faith belief that the marriage was valid and the impediment is removed)
  2. Incest
  3. Mental Incapacity (a person who is unable to understand the nature of the marriage contrat acks the cpaacity to marry)

Voidable Marraige—Valid until a judicial decree dissolves the marriage

  1. Age
  2. Impotence
  3. Intoxication
  4. Fraud
  5. Duress
  6. Lack of Intent
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10
Q

Defenses to a Void Marriage

A

the only defense is to deny the existence of the impediment that makes the marriage void

removing the impediment makes the marriage voidable

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11
Q

Defenses to Voidable Marriage

A

Equitable defense of unclean hands, laches and estoppel are recognized

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12
Q

Putative Marriage/Spouse Doctrine

A

a party who particiapted in a ceremonial marriage and belives in good faith that the marriage is valid may use a state’s divorce provisions even if the marriage is later found to be void

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13
Q

Divorce Requiement

A

Residency Requirement–most states require at least one party to be a resident

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14
Q

No Fault Divorce

A

Marriage is irretrievably broken and there is no prospect of reconciliation

Irreconcilable difference must exist for a specific period of time prior to the filing of the divorce action

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15
Q

Grounds for Fault Divorce

A
  1. Adultury—it must be shown that the spouse had the opportunity and the inclination to commit adultery; usually proven by circumstantial evidence
  2. Cruelty—the plaintiff must demonstrate a course of conduct by the other party that is harmful to the plaintiff’s physical or mental health and the makes continued cohabitation between the parties unsafe or improper
  3. Desretion—results when one spouse voluntarily leaves the marital home with the intent to remain apart on a permanent basis; does not apply if the parties separate by mutual consent
  4. Habitual Drunkenness—frequent intoxication that impairs the marital relationship
  5. Bigamy—when one party knowingly entered into a prior legal and existing marriage before entering into the current marriage
  6. Imprisonment—of one spouse for a specified period of time
  7. Institutionalization for Insanity—with no reasonable prospect of discharge or rehabilitation
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16
Q

Defenses to a Fault-Based Divorce

A

Must affirmatively pleaded

  1. Recrimination
  2. Unclean Hands
  3. Connivance
  4. Condonation
  5. Collusion
  6. Provation, Insanity
  7. Consent
  8. Justification
  9. Religion
17
Q

2 Ways to Distribute Property Upon the End of a Marriage

A

(1) Community Property—most community property states require equal division of martial property
(2) Equitable Distribution—objective is fair distribution of marital proeprty, not necessarily equal division

18
Q

Marital Property

A

Most states—all property acquired during marriage

Some States—all property owned by either spoouse (hotchpot approach)

Burden of Proof—on party assserting property is nonmarital

19
Q

Non-Marital Property (Seperate Property)

A

(1) Property acquired before the marriage
(2) Property excluded by the parties’ valid agreement
(3) Property acquired by gift or inheritance (except gifts between spouses)
(4) Any award or settlement payment recieved for a cause of action or claim that accured before the marriage, regardless of when the payment was recieved

20
Q

Factors Considered for Distribution of Marital proeprty

A
  1. length of marriage
  2. prior marriages
  3. age
  4. health
  5. earnings
  6. earning potential
  7. liabilities
  8. needs of both spouses
  9. contributions to education
  10. income
  11. medical needs
  12. retirement of both spouses
  13. homemaking
  14. child-rearing services
  15. value of separate property
  16. reduction in valuation in marital property by one spouse
  17. standard of living
  18. economic circumstances of each spouse at time of divorce
  19. custody of any minor children
21
Q

Treatment of Personal injury claim proceeds/workers’ compensation award

A

Some states—if the cause of action accrued during marriage, the proceeds or award are marital property

Other states—allocate the proceeds or award between martial property and separate property

  • Damages for pain/suffering/disability—separate property of the injured spouse
  • Consortium losses—separate property of the non-injured spouse
  • Awards for lost wages, loss of earning capacity, and medical expenses— typically split between marital and separate property based on the portion of the award attributable from the time of the accident to the end of the marriage (marital property), and the portion attributable to loss of wages or medical expenses after the termination of the marriage (separate property)
22
Q

Treatment of

Professional licenses/degrees

Retirement or pension benefits

Goodwill

Accumulated sick and vacation days

Expectancy interest in property

Social Security benefits

Post-separation property

Unexercised stock options

A

Professional licenses/degrees—not a property interest, but can affect alimony

Retirement or pension benefits—marital property if acquired during the marriage

Goodwill—the reputation and clientele of a professional practice is considered marital property in some states

Accumulated sick and vacation days—states split on classification, timing

Expectancy interest in property—not distributable

Social Security benefits—not subject to equitable distribution

Post-separation property—can be marital property (most states)

Unexercised stock options—marital property if acquired during marriage

23
Q

Modification of Property Division

A

Modification—not permitted; the property division is based on the parties’ assets at the time of the divorce

24
Q

Types of Custody

A

Legal custody—the right of a parent to make major decisions about the child’s life (e.g., health, education, religion)

Physical custody—the right of a parent to have the child reside with the parent and the obligation to provide for routine daily care and control of the child

Joint custody

  • Parents must both be willing and able to cooperate with respect to the wellbeing of the child
  • Joint legal custody—neither parent has a superior right to make major decisions
  • Joint physical custody—does not necessarily require 50-50 time-sharing arrangement
25
Q

The Uniform Child Custody Jurisdcation and Enforcement Act (UCCJEA)

A

Purpose—to prevent jurisdicational disputes with courts in other states on matters of child custody and visitation

Gives a court subject matter jurisdication to preside over custody hearings and either enter or modify custody or visition orders if

(1) Home State Jurisdication
(2) Signifigant Connection Jurisdication
(3) Default Jurisdication
(4) Exclusive Continuing Jurisdication
(5) Temporary Emergency Jurisdication

26
Q

Under the UCCJEA, when does a court have SMJ to preside over custody hearing, enter or modify custody or visitation orders?

Childs Home State is__________?

A

A court has subject-matter jurisdiction to preside over custody hearings and either enter or modify custody or visitation orders if the state:

Is the child’s home state (the state is which the child has lived for at lest 6 consecutives months prior to custody proceeding, or since birth, if the child is less than 6 months old),

OR

Was the child’s home state in the past six months, and the child is absent from the state, but a parent (or guardian) continues to live in the state

27
Q

UCCJEA Significant Connection Jurisidication

A

A court can enter or modify an order if:

  • No other state has or accpets home-state jurisdication
  • The child and at least one parent has a signifigant connection with the state, and
  • there is substantial evidence in the state about the child’s care, protection, training, and personal relationships
28
Q

UCCJEA Default Jurisdication

A

If no state has jurisdication through home state or substntial connection jurisdcaition, court in state with appropraiate connection to child has jurisidcation

29
Q

UCCJEA Exclusive Continuting Jurisdication

A

A court that makes initial ruling has exlcusive-continuing jurisidcation over matter until parties no loner reside in the state, or child no longer has signifigant connection to state

30
Q

UCCJEA when can a court decline jurisidication

A

if a court has either intital or exclusive contintuing jurisdication, it may decline to hear a case if it finds form to be inconvenient

31
Q

UCCJEA Temporary Emergency Jurisdication

A

Child in danger, requires immediate protection

If there is no prior custody order, an emergency order remains in effect until a decision by the child’s home state

32
Q

Standard to Determine Child Custody

A

Best Interest of the Child

Between Parents—the primary caretaker during the marriage, seperation, and prior to the divorce is a factor

Parents’s Sexual Conduct—a factor only if the parent’s conduct has or will have a negative effect on the child

Child’s Preference—taken in account if the child is of sufficent maturity

33
Q

When is Non-custodial Parent allowed visitation

A

Allowed reaosnable visitation with a minor child

Denial of vistion only when it would seriously endanger a child’s physical, mental, or emotional health

Restricts (Supervision, denial of overnight visits) may be imposed

34
Q

Standard for Modifcation of Child Custody

A

Change in Circumstances Standard

Relocation–May be permited if there is a legitimate and reasonable purpose for the move

35
Q

NEEDED TO DO

Financial Suporrt of Spouse and Children

Marital Agreements

A

MEE Subjects (AV) (4 decks)

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